WND EXCLUSIVE

The growing case for impeachment of Obama

What constitutional experts say about high crimes, misdemeanors

Should Barack Hussein Obama, the 44th president of the United States, be impeached for high crimes and misdemeanors?

It’s not a question yet being asked or debated in the Big Media. But it is a question being addressed by some members of Congress, by an increasing number of pundits by activists on the left and the right – and for more than one or two alleged constitutional offenses.

Article II, Section 4, of the U.S. Constitution states, “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

The U.S. House of Representatives has the power to commence impeachment proceedings. If the House adopts an impeachment resolution, the U.S. Senate conducts a trial and determines whether to convict or acquit. If an official is convicted, he or she is removed from the position and may be barred from holding office again. The official may also face criminal prosecution.

Only two U.S. president have been impeached by the House: Andrew Johnson and Bill Clinton. However, both presidents were acquitted in the Senate. President Richard Nixon resigned before the full House had voted on his impeachment.

This powerful legislative check on executive and judicial wrongdoing is reserved for the most egregious offenses against the U.S. Constitution and the republic.

During the debates of the Constitutional Convention in 1787, James Madison explained the requirement for impeachment: “[S]ome provision should be made for defending the community against the incapacity, negligence, or perfidy of the chief magistrate. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.”

In the Federalist Papers (No. 65), Alexander Hamilton wrote that a president should be impeached for “offenses which proceed from the misconduct of public men, or in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to society itself.”

WND assembled a bipartisan panel of top constitutional experts to evaluate 12 popular arguments for impeaching Obama.

Bruce Fein is the legal scholar who is best known for having drafted articles of impeachment against former President Bill Clinton for perjury after he lied under oath about having sexual relations with an intern.

Fein also drafted articles of impeachment against former President George W. Bush and former Vice President Dick Cheney. In 2011, he drew up formal articles of impeachment against President Obama for his use of military action against Libya without congressional authorization.

Fein was a top Justice Department official under the Reagan administration. He graduated with honors from Harvard Law School in 1972. Fein clerked for a prestigious federal court, and has served in top positions in the Office of Legal Counsel and the Office of Legal Policy. He has served as visiting fellow for constitutional studies at the Heritage Foundation, adjunct scholar at the American Enterprise Institute and guest lecturer at the Brookings Institute.

As for his political persuasion, Fein told WND, “I criticized Nixon. I criticized Clinton. I criticized Bush and Cheney. I criticize Obama. I don’t have any reluctance because I view myself as an American first.”

Herbert Titus

Constitutional scholar Herbert Titus

Herbert Titus, counsel to the law firm William J. Olson, previously taught constitutional law, common law and other subjects for 30 years at five different American Bar Association-approved law schools. From 1986 to 1993, he was the founding dean of the College of Law and Government at Regent University.

And before that, he was a trial attorney and special assistant U.S. attorney with the Department of Justice.

Titus’ degrees are from Harvard and the University of Oregon, and he’s admitted to practice before the U.S. Supreme Court, appellate courts in the 6th, 7th, 9th, 10th and other districts. His practice has taken him into courts more than a dozen different states. He has testified on constitutional issues before Congress. Titus has also testified on state and federal constitutional issues before several state legislatures.

Constitutional expert Louis Fisher is scholar in Residence at the Constitution Project. Previously he worked for four decades at the Library of Congress as senior specialist in separation of powers and specialist in constitutional law. During his service with CRS, he was research director of the House Iran-Contra Committee in 1987, writing major sections of the final report.

Fisher is author of dozens of books specifically on constitutional law. He received his doctorate in political science from the New School for Social Research and has taught at Queens College, Georgetown University, American University, Catholic University, Indiana University, Johns Hopkins University, the College of William and Mary law school and the Catholic University law school. Fisher has been invited to testify before Congress about 50 times on constitutional issues.

Fisher told WND he voted for Obama in 2008 and 2012, but he and doesn’t let partisan politics cloud his judgment when it comes to constitutional issues.

“I had plenty of criticism toward George W. Bush and Richard Nixon,” he said. “I’ve been just as harsh about Bill Clinton and Harry Truman and Lyndon Johnson and the rest. I’m not partisan, but I don’t flinch from saying what the evidence is.”

Operation Fast & Furious

In June 2012, the Obama administration invoked executive privilege to stop disclosure of documentation to Congress following Operation Fast and Furious, a gun-walking scheme that resulted in the deaths of as many as 100 people, including U.S. Border Patrol Agent Brian Terry.

During the botched operation, the Justice Department’s subdivision of Alcohol, Tobacco and Firearms lost approximately 2,000 weapons, allowing many of them to flow freely across the U.S.-Mexico border and into the hands of members of Mexican drug cartels.

The U.S. House of Representatives voted to hold Attorney General Eric Holder in contempt of Congress, but U.S. Attorney Ronald Machen chose to ignore the criminal resolution and not bring charges against Holder.

The Obama administration filed a motion on Jan. 11 to block a lawsuit by Judicial Watch demanding enforcement of a June 22, 2012, Freedom of Information Act request seeking all documents relating to Operation Fast and Furious, and “specifically all records subject to the claim of executive privilege invoked by President Obama on or about June 20, 2012.”

What the experts say …

“That also probably could be an impeachable offense for Eric Holder,” Fein told WND regarding the administration’s stonewalling on release of the missing documents. “That’s ridiculous. In my judgment, Congress is entitled to any scrap of information it wants for oversight. Some of it they may wish, for prudential purposes, to keep in executive session. But Congress spends the money.

“I’ve gone up there and proposed statutes: ‘No moneys of the United States can be expended by the executive branch to gather or collect information unless it’s shared with Congress.’ That’s the end of the matter. If you don’t want to share with Congress, you can’t collect. Congress, in my judgment, has a preliminary right, whether you’re a Republican or Democrat, to see anything in the executive branch.”

Fein said Holder should stop stonewalling and immediately present the requested information to Congress.

“If he had any brains, he’d go ahead and reveal the documents,” he said. “The executive branch is a servant of Congress. Congress is not the serf of some lord of the manor in the White House.”

Fisher agreed with Fein. He told WND, “I was on the first panel testifying about congressional access. I testified before Chairman Issa with three other people, and we said congressional committees have full need for oversight to get access to executive branch documentation. They can’t be told by the Justice Department, ‘Sorry, we’re doing our own investigation’ or ‘Sorry, there’s some sort of litigation.’

“Agencies get into trouble and usually the smart thing, and what they didn’t do, is to say, ‘We made a terrible mistake and we apologize.’ They don’t do that, so there’s more obstruction. The Inspector General report from the Justice Department was like 5 inches of pages, and it was a devastating critique of the Justice Department on how it behaved.

“I would have expected Obama to say, ‘Keep that cr-p away from me. I don’t want to get near it.’ But he invoked executive privilege,” Fisher said. “Obstruction by the government is very, very serious.”

However, Titus told WND, “I would be less inclined to think that we ought to hold the president directly responsible for that – primarily because it was not really a policy that was developed initially during the Obama administration. It was an inherited one, and apparently some of this was going on during the Bush administration.

“It seems to me that the proper target of an investigation with regard to this is the attorney general. He’s the one who’s directly responsible for continuing the program. While President Obama is ultimately responsible, strategically you don’t go after Obama when you have a target as easily identified as Holder.”

Obama’s U.S. citizen ‘hit list’

In 2010, Obama ordered the assassination of a radical American-born Muslim cleric who became an avowed member of al-Qaida’s affiliate in Yemen. Anwar al-Awlaki was killed in a drone strike in September 2011, along with naturalized U.S. citizen and al-Qaida propagandist Samir Khan. Awlaki’s 16-year-old American-born son, Abdulrahman, was killed in a similar strike two weeks earlier.

While there is little argument that Awlaki was involved in terrorist activity, the Obama administration failed to provide due process to the U.S. citizens targeted for the use of deadly force. Awlaki had reportedly communicated by email with Maj. Nadal Hasan, the U.S. Army psychiatrist who murdered 13 soldiers at Fort Hood, Texas. He had also been tied to the so-called “underwear bomber” who attempted to blow up a Detroit-bound plane with plastic explosives sewn into his undergarments on Dec. 25, 2009. The FBI suspected Awlaki had purchased airplane tickets for three of the Sept. 11, 2001, hijackers before the terrorist attacks.

Awlaki spent years in the U.S. as an imam and a Muslim chaplain at George Washington University before moving to Yemen. He had been in U.S. custody twice and released before he was killed by the drone strike. Awlaki was detained in 2002 at the John F. Kennedy International Airport in New York City for passport fraud. A Judicial Watch investigation revealed that he had been released by the FBI. He was also held for at least eight months in 2006 and 2007 and subsequently released.

In 2010, the American Civil Liberties Union and the Center for Constitutional Rights sued the U.S. government on behalf of Awlaki’s father, challenging the federal government’s authority to conduct “targeted killings” of U.S. citizens who are not in an armed conflict zone. A federal district court dismissed the case in 2011.

So how does the Obama administration determine who’s a terrorist for the purpose of compiling its hit list?

Samir Kahn

A confidential Justice Department “white paper,” which is not an official legal memo, was released just last week to NBC News. It states that the U.S. government can order targeted killing of American citizens if they are believed to be “senior operational leaders” of al-Qaida or “an associated force.”

In response to the memo, a bipartisan letter from 11 top-ranking senators to President Obama stated, “It’s vitally important for Congress and the American public to have a full understanding of how the executive interprets the limits and boundaries of this particular authority.” The senators asked Obama for “any and all legal opinions” that clarify the basis of his perceived power to “deliberately kill American citizens.”

Judge Andrew Napolitano warned, “This 16-page white paper was written so vaguely that the logic from it could actually be extrapolated to permit the president to kill Americans here in the United States.”

Napolitano noted that Obama also violated another federal statute: “When the president ramps up the war on terror or decides to move into another area or use the CIA to engage people, whether to arrest them or to kill them, he’s required to tell the Senate and House intelligence committees ahead of time and get their consent. He apparently didn’t do that, and so [Congress is] burned by this.”

What the experts say …

“Some people argue, ‘Well, he’s only killing terrorists,'” Fein told WND. “Oh really? How do you know? There’s no accountability. Was Mr. al-Alwaki’s son, a 16-year-old teenager having dinner, a terrorist? So whenever the president says someone’s a terrorist, are they convicted? If the president says conservatives are terrorists, is he going to kill them?

Fein argued that the killings were “tantamount to murder.”

“We know at a minimum there have been three, but perhaps many more. We’re just guessing. You can’t have democracy and the rule of law if you never get to know what the facts are and you just have to accept what the government says they are. If you don’t have a trial, that’s the definition of tyranny.”

Because there was so much evidence against Alwaki, critics argue a conviction could have been easily obtained by the Obama administration.

“It isn’t like they didn’t have evidence,” Fein said. “They had confession, admission against interest. Any of them might plead guilty. Only an uncivilized, savage people convict people without trial and sentence them to the gulag. That’s what we read about in the Soviet Union under Stalin and Khrushchev and Brezhnev. That’s what we read about in China under Mao. Is that what we want to be?”

Fein also blasted the fact that the Obama administration’s justification for the killing remained confidential until now.

“There’s a huge, strong legal case here, absolutely,” he said. “I worked in the Office of Legal Counsel. I worked on impeachment of Nixon. The idea that I would write a secret memo on something that’s an impeachable offense would be insane. A legal rationale now becomes classified because it would tell the enemy what constitutional theory you’re using justify this killing? You’ve got to be kidding!”

Fisher agreed with Fein: “There are no possible grounds for ever keeping legal reasoning secret. If a legal memo has sources and methods, just strike it out and the reasoning must be made public. If you’re not willing to give your reasoning, I’d ask, what’s going on? It’s probably that your reasons are not very good.”

Titus told WND, “It’s quite remarkable that Congress has basically abandoned this issue to the president, primarily by not addressing the issue in the National Defense Authorization Act not only in 2012 but also in 2013, where it basically gives the president carte blanche to detain any person that he suspects to be guilty of aiding people involved in terrorism. The fact that Congress won’t take a stand on that indicates that it wouldn’t intervene in the president’s use of drones to assassinate people he suspects are actively engaged in acts of terrorism even inside the United States.

“Basically, Obama is claiming the right to be the prosecutor on the grounds that the whole world is a war zone. I think it’s an impeachable offense because he’s neither using the civilian courts nor is he bringing them before our military courts. What the president has done is simply defined the whole world as a battleground.”

Upon reviewing the recently released “white paper,” Titus and attorney William J. Olson wrote, “Now, we can see why the Department of Justice has been so reluctant to share the basis for its legal analysis. It is deeply flawed – based on a perverse view of the Fifth Amendment Due Process Clause.

“Additionally, the white paper completely ignores the procedural protections expressly provided in the Constitution’s Third Article that were specifically designed to prohibit the president from taking the law into his own hands, serving as prosecutor, judge, jury, and executioner.”

The Constitution allows the president to nominate judges and executive branch officials, but the Senate must confirm his nominees. Article II, Section 2, of the Constitution authorizes the president to “fill up all Vacancies that may happen during the Recess of the Senate.”

But while the Senate was in session in January 2012, Obama made recess appointments of Richard Cordray to head the new Consumer Financial Protection Bureau and three members of the National Labor Relations Board.

Obama argued that because the Senate had been convening every three days, the pro forma sessions didn’t allow any business to take place, so the Senate should be considered in recess.

The U.S. Court of Appeals for the District of Columbia Circuit ruled that Obama’s three NLRB recess appointments violated the Constitution because they weren’t made when the Senate was in recess. Now the Supreme Court has received a petition asking the justices to consider the decision.

“I also denounce those,” Fein said, though he didn’t call for Obama’s impeachment because he said the matter can be settled by lawsuits charging that the occupants aren’t holding office legally.

“It’s ridiculous to claim there’s a recess even when the Senate is quite there and available. In fact, Congress passed a bill during that period. They weren’t in session for purposes of receiving a nomination? That’s such a joke. That was another abuse.”

Fisher told WND, “I voted for Obama, but these people who say, ‘Oh, well he taught constitutional law,’ well geez, he was a lecturer. He’s never written anything on constitutional law in his life. I think that would be quite a slap in his face if they said, ‘What the hell were you doing?'”

Titus said, “I think there’s a problem distinguishing President Obama and earlier presidents who have been making recess appointments. It may be that President Obama has been more bold and flourishing in the way he has done it, but it’s difficult to distinguish it from acts done before.

“I would think it would not be politic to bring this as a high crime and misdemeanor when it really has been employed by other presidents and there’s a genuine dispute with regard to its constitutionality. I think this should be resolved in the normal courts of judicial review.”

Appointment of ‘czars’ without Senate approval

Obama also appointed more than 30 unelected “czars” to positions in federal agencies while the Constitution requires that such appointments be vetted by Congress. Article II, Section 2, allows the president to appoint ambassadors, judges and other officers “with the Advice and Consent of the Senate.”

What the experts say …

“Congress clearly has the authority to say, ‘No money shall go to pay the salaries of X, Y, Z unless they’re subject to Senate confirmation,’ Fein said. “That’s really one where Congress, by its negligence, is not insisting on accountability.”

Fisher told WND, “That is a big deal. A lot of people say, ‘Well, that’s been going on a long time.’ In our form of government, citizens vote for representatives, and representatives pass laws. You have people heading departments, and they’re confirmed. There’s an understanding that we will call you up whenever we need to. So there’s accountability through that process.

“Congress passed legislation saying there’d be no funds for three czars, and they were named in the bill. Obama signed it into the law, but in the signing statement, he said that’s unconstitutional because he has the ‘prerogative’ to get the advice he needs to implement statutes. Well, c’mon Obama. You don’t have a prerogative to bring into the White House anybody you want at any salary. It’s all done by law. It goes back to 1978 where Congress passed legislation saying you have this number of people and these are their salaries and Congress can increase or decrease that at any time.

“I think Obama had no idea what he was doing when he was using the word ‘prerogative.’ He can get all the advice he wants in the private sector, but Congress decides how many aides the president will have and what salaries they get.”

Titus said the move wasn’t unconstitutional, and Obama shouldn’t be held responsible because the popularity of czars under his administration is “Congress’ fault.”

“There’s always been an assumption that the president is entitled to certain people who would not be vetted by the Senate: chief of staff, for example, and others where there’s a real keen interest in making sure that the person who occupies a position is loyal to the president,” Titus said.

“I think the reason why President Obama has appointed so many people in addition to that is because the government is run basically by an unelected bureaucracy. One of the most frustrating things for a president is to come in and realize he can’t fire anybody, except for a precious few who are considered to be political appointees. He’s up against this bureaucratic wall, in a way.”

Suing Arizona for enforcing federal law

Arizona Gov. Jan Brewer confronts Obama

In April 2010, Arizona adopted an immigration law designed to discourage illegal aliens from entering the state. The law, known as S.B. 1070, authorized state police officers to verify a person’s immigration status with federal authorities and detain individuals suspected of being in the country illegally.

When the state senate passed the bill, President Obama’s administration immediately sued and enjoined the state from enforcing portions of the state’s legislation.

The Constitution does not prohibit states from supporting enforcement of federal laws. The 10th Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Just one week after it sued Arizona, Obama’s Justice Department said it would not pursue “sanctuary cities” that openly violate federal law by protecting illegal aliens.

“There is a big difference between a state or locality saying they are not going to use their resources to enforce a federal law, as so-called sanctuary cities have done, and a state passing its own immigration policy that actively interferes with federal law,” Tracy Schmaler, spokeswoman for Attorney General Eric Holder, told the Washington Times. “That’s what Arizona did in this case.”

“The administration is entitled to bring a lawsuit,” Fein said. “Sometimes they win, sometimes they lose. In fact, in that particular case, that went to the Supreme Court. There were four issues raised. They prevailed on three and lost on the fourth. So that’s not an abuse. The Court decided, and the administration didn’t suggest it was going to flout the Court’s ruling.”

Fisher told WND, “The Supreme Court did sort of a mixed opinion on that. They didn’t strike down everything Arizona did, but they did allow Arizona some leeway. The Justice Department said this is ‘quintessentially’ a national power. Well, if it’s quintessentially a national power, why don’t you do something? It hasn’t done anything for decade after decade after decade. States have a right to protect themselves.”

Titus added, “He can file a lawsuit. There’s nothing unconstitutional about filing a lawsuit. What is unconstitutional about the Obama administration’s position is that Congress has this plenary power with regard to immigration. Therefore, it can control the states exercising their power with regard to their own borders. If you go back and look at history, the states have always been able to protect their own borders from people coming in and going out.”

Illegal-alien amnesty by executive order

In June 2012, Obama issued an executive order declaring that illegal immigrants who were brought to the U.S. before they turned 16 and who are younger than 30 would not be deported. They are eligible for a two-year work permit that can be renewed indefinitely under the program called Consideration of Deferred Action for Childhood Arrivals.

Arguing that children of illegal aliens “study in our schools, play in our neighborhoods, befriend our kids, pledge allegiance to our flag,” Obama said, “it makes no sense to expel talented young people who are, for all intents and purposes, Americans.”

Obama’s executive order mimics some of the provisions in the DREAM Act, which has failed to pass in Congress.

What the experts say …

“I definitely think it’s a very troublesome precedent because the president basically said, ‘Listen, even though the statute doesn’t just carve out an automatic exemption from deportation for this category of individuals, I’m just going to decide unilaterally that I will not deport them.’ Really?” Fein said. “Could you decide you don’t want to enforce the homicide statute for a certain category of people as well?

“That seems to me to fall into a serious category of failure to ‘take care that the laws be faithfully executed.’ It’s one thing, given limited resources and the number of illegals, to just say, ‘We’ve got limited resources, and as a matter of practical discussion, we’ve got to look at 1, 2, 3, 4.’ But you still have an individualized determination. That happens in the U.S. Attorney’s office all the time when crimes are committed. But just as a wholesale statement: ‘We just don’t want to enforce the law’?”

“Could the president stand up and say, ‘You know what? I just don’t want to enforce the Voting Rights Act anymore. It’s just too much of a hassle’?”

However, Fein added, “There are stronger cases for impeachment” than the executive order blocking deportation of young illegal aliens.

Fisher told WND, “Impeachment? I think it’s a stretch. Reagan did a deal where 1 or 2 million people illegally here would be made citizens. That was supposed to be a solution. Now we have something like 12 million. Both parties are guilty, and the national government is certainly guilty. I was certainly sympathetic with Arizona trying to cope with this under its own means. There’s a certain amount of vandalism and crime associated with these rates. States should be able to protect themselves.”

Titus added, “One of the problems with impeaching President Obama is that much of what he’s doing, he’s doing because Congress has allowed it or authorized it. So Congress is not in a position to review Obama’s actions and, in the House, to charge him with a high crime and misdemeanor. It’s very difficult.”

Cap & Trade: When in doubt, bypass Congress

In April 2010, the U.S. Senate rejected the “cap-and-trade” bill, which created a carbon-tax system and amplified federal power over the energy industry.

That step provided the EPA with the authority to regulate the gases in the absence of congressional approval, and the federal agency rolled out new rules.

What the experts say …

Fein dismissed the idea that Obama should be impeached for his administration’s actions on cap and trade: “That’s an asinine argument. Yeah, so what? It’s politics, and if Congress didn’t like it, they can vote to override the regulation any time.”

Fisher said, “I doubt if the EPA has full authority to act in aggression on global warming, but I think they have some discretion. I’m sure statutes passed by Congress on clean air and clean water are on the broad side. The EPA still has some discretion.”

Titus added, “Who created the EPA? Congress. Who has delegated the power to make the rules? Congress has delegated what would otherwise be its job to the EPA. Under the law created by Congress, there are very few standards that would be enforceable to say the EPA doesn’t have that authority.

“Congress has delegated its lawmaking power to administrative agencies in an increasing fashion from the time when it first started doing that in the late 19th century. If Congress were to come along now and say, ‘You’re exceeding your authority,’ the difficulty is that it can’t find anything in the statute to prove the EPA is going beyond the authority that Congress gave it.

“Congress could stop this with its appropriations power, or it could pass a statute and say, ‘You can’t do this.’ Or it could abolish the EPA, which, of course, Congress would never do. Cap and Trade is hardly an impeachable offense.”

The 14th Amendment to the Constitution guarantees “due process” and “equal protection of the laws” while the 15th Amendment guarantees that “the right of citizens to vote shall not be denied or abridged … on account of race …”

As WND reported in 2008, two NBPP members were filmed standing in front of the entrance to a Philadelphia polling station in black uniforms, with one member wielding a billy club.

According to complaints, both men standing in front of the polling station pointed at voters and shouted racial slurs, using such phrases as “white devil” and, “You’re about to be ruled by the black man, Cracker!”

Attorney General Eric Holder’s office was accused by Justice Department insiders of racial favoritism in dropping the charges against the NBPP.

In May 2010, J. Christian Adams resigned as a Justice voting department trial attorney, citing preferences related to trying civil rights cases only when minorities were the victims.

“I was told by voting section management that cases are not going to be brought against black defendants on [behalf] of white victims,” Adams said in testimony before the Civil Rights commission.

Adams was backed up by Christopher Coates, the former head of the voting section for the Department of Justice’s Civil Rights Division. Coates had led the original investigation of the New Black Panther Party.

Coates stated in testimony, “I had people who told me point-blank that [they] didn’t come to the voting rights section to sue African-American people.”

What the experts say …

“Dismissing voter intimidation charges? Well, it may be that you have oversight hearings and you feel that was an uneven administration of the law,” Fein said. “I don’t know that anybody has suggested that there’s been a single election in which the outcome was affected because there was some irregularity in the voting process. Again, it’s going for the capillaries. I’m not trying to exonerate it. We just have to put a level of gravity on this. This is the capillary, not the jugular.”

Fisher added, “You go after anybody who intimidates voters, regardless of what their color is. The public looks to government to have some integrity, and I don’t see any integrity from the Justice Department there. Voter intimidation is against the law. That’s a basic principle, and you uphold it.”

Titus told WND, “What we have is a double standard. If it’s a minority who’s concerned about access to the ballot and it fits in one of those geographic locations that’s covered by the Voting Rights Act, then a change in the voting law is presumed to be unconstitutional, and you can bet your boots that the Justice Department is going to be right there on the doorstep. But when it comes to white people who might be discriminated against with regard to access to the ballot, they look the other way.

“If there’s anybody who ought to be impeached on that one, it’s Attorney General Eric Holder. Between that and Fast and Furious, if Congress were to do its job, it should bring articles of impeachment against Holder and take it to the Senate for trial.”

Refusal to defend Defense of Marriage Act

President Obama announced in 2011 that his administration believed the Defense of Marriage Act, or DOMA, to be unconstitutional and instructed the Justice Department to no longer defend it in court.

DOMA, which was passed in 1996 under President Bill Clinton, says states will not be forced to recognize homosexual marriages performed in other states, and the federal government doesn’t recognize such unions. The Supreme Court is expected to determine whether Section 3 of DOMA violates the U.S. Constitution’s guarantee of equal protection this spring.

The law has been on Obama’s radar for several years; he promised to repeal DOMA during his 2008 campaign for president.

In February 2011, Attorney General Eric Holder released the following statement:

“After careful consideration, including a review of my recommendation, the president has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The president has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the president has instructed the Department not to defend the statute in such cases. I fully concur with the president’s determination.”

After the Obama administration refused to defend the law, House leaders instructed the House general counsel to take up the case. Because the Justice Department won’t be doing it, taxpayers have already paid as much as $1.7 million for the legal work.

Rep. Trent Franks, R-Ariz. has raised the possibility of impeaching Obama over his refusal to defend DOMA. Former House Speaker Newt Gingrich said Congress should “confront” Obama, “threatening to zero out” the budget at the Attorney General’s office until the president decides to defend DOMA.

What the experts say …

“When I served in the Office of Legal Counsel and Deputy Attorney General, the standard for refusing to defend a federal statute was if it was flagrantly unconstitutional under prevailing and longstanding Supreme Court rulings,” Fein told WND. “DOMA does not come close to meeting that exacting standard. Obama’s refusal to defend it violates his obligation to ‘take care that the laws be faithfully executed’ imposed by Article II.”

Fisher added, “Decades ago, Congress learned that administrations were not defending certain statutes. There was a rule that if you decide not to defend it, you have to tell them. They’ve been doing it ever since. That’s why Holder wrote the letter saying we’re not going to defend this. I don’t think there’s any question that the administration can, based on reasoning, announce that they can’t defend the statute.

“I thought personally the letter from Holder was on the thin side. It would have been better to have a more substantive document. Maybe the Office of Legal Counsel could have explained why. I read it, and I thought it was pretty unimpressive. I don’t object when an administration, based on good reasoning – which I don’t think Holder gave to Boehner – says, ‘We really cannot in good conscience defend this.'”

Titus told WND, “This is a classic example of the president assuming the powers of the English king. The English king claimed to have the prerogative to dispense and suspend the laws. [T]here’s no question that our founders did not believe that they had delegated the power to the president to suspend or dispense with the law. They gave him specific power to veto, and that was limited. And the ‘take care that the law is faithfully executed’ is a kind of limit upon the power of the president, rather than a broad, sweeping power.

“But this is a difficult one to be a high crime and misdemeanor, primarily because Obama is not the first president to take the position that he could suspend a particular law and not fully enforce it. To make this into a high crime and misdemeanor would be political folly.”

Illegally conducting war against Libya

Article I, Section 8, of the Constitution gives Congress the power to declare war.

The U.S. launched combat operations in Libya on March 19, 2011. For several weeks before the U.S. combat operation in Libya, CIA operatives had been deployed to the area to gather intelligence for military airstrikes and support Libyan rebels in the overthrow of Gaddafi. The New York Times reported in March 2011 that Obama had “signed a secret finding authorizing the C.I.A. to provide arms and other support to Libyan rebels.”

The U.S. military had been reportedly monitoring Libyan troops with U-2 spy planes, a high-altitude Global Hawk drone and a JSTARS aircraft to track troop movements.

Fox News’ Mike Huckabee raised the issue of impeachment over Obama’s order to bomb Libya, stating, “I think frankly, if this issue really gets traction that it deserves, and let it say it deserves, go back. Richard Nixon was forced out of office because he lied. And because he covered some stuff up. I will be blunt and tell you this. Nobody died in Watergate. We have people who are dead because of this. There are questions to be answered and Americans ought to demand to get answers.”

As WND reported in March 2012, Rep. Walter Jones, R-N.C., introduced House Concurrent Resolution 107, which stated, “[I]t is the sense of Congress that, except in response to an actual or imminent attack against the territory of the United States, the use of offensive military force by a President without prior and clear authorization of an Act of Congress violates Congress’s exclusive power to declare war under article I, section 8, clause 11 of the Constitution and therefore constitutes an impeachable high crime and misdemeanor under article II, section 4 of the Constitution.”

“In the case of Libya, the president had no congressional authority whatsoever,” Fein said. “The whole thing is insane. And the executive doesn’t care because all the time that conflict ensues, that just means more executive power. That’s exactly what the Founding Fathers feared.

“President Obama just totally flouted the whole thing and basically said through his various memos, ‘I don’t need congressional authority to go to war.’ That was clearly an impeachable offense. It’s clearly gross usurpation of the war power. Both the Republicans and Democrats have acquiesced in that.”

“I think it’s completely unconstitutional,” he said. “It’s extremely offensive for a president to claim he can use military force against another country, like Libya, that didn’t threaten us. I find that appalling.

“Of course, the Office of Legal Counsel sent out a memo. It claimed there’s no war because there were no legal casualties. If that’s your legal reasoning, you could absolutely pulverize another nation. If anyone did anything to us like what we did to Libya, we’d obviously call it war. That was a complete and total outrage.”

Titus added, “I think Libya is the strongest argument for impeachment. That’s the one that stands out. It’s unprecedented. It doesn’t even fit within any of the precedents that have been set since Korea.

“If you’re going to talk impeachment, you have to find something that Obama has done that is so distinctly different than what other presidents have done before him that people can resonate with it. The difficult, of course, is that people have forgotten about Libya.”

On Sept. 11, 2012, a U.S. ambassador to Libya and three other Americans were brutally murdered at a U.S. diplomatic mission in Benghazi.

Just three days after the attack, White House Press Secretary Jay Carney accused an anti-Muslim video on YouTube of inciting the attack. On Sept. 16, U.N. Ambassador Susan Rice made five television appearances in which she claimed the attacks were spontaneous reactions to the obscure film. Obama mentioned the YouTube video six more times at the U.N. on Sept. 25.

However, there was never any kind of protest at the Benghazi compound that night.

During congressional hearings in January in which Secretary of State Hillary Clinton finally was questioned about the calamity on her watch, Clinton claimed she didn’t see a classified State Department cable sent Aug. 16 that said the Benghazi mission could not defend against a “coordinated attack.”

However, the State Department’s Charlene Lamb reportedly observed the attack in near real time.

Lt. Col. Tony Schaefer told Fox News that Obama watched the attack from the situation room: “I hate to say this, according to my sources, yes, (the president) was one of those in the White House situation room in real-time watching this. And the question becomes, ‘What did the president do or not do in the moments he saw this unveiling?’ He — only he — could issue a directive to Secretary of Defense Panetta to do something.”

However, in their testimonies before the Senate Armed Services Committee, Defense Secretary Leon Panetta and Joint Chiefs Chairman Gen. Martin Dempsey said they only spoke with Obama once during the attack in a phone call. Obama spent the following day fundraising in Las Vegas.

In response to questions from Sen. Kelly Ayotte, R-N.H., Panetta said Obama didn’t ask about military options or deploying assets.

“He just left that up to us,” Panetta said.

The New York Post confirmed that a U.S. military drone had been relaying real-time data to Washington, D.C.

After the administration had blamed the YouTube video for sparking the assault, columnist and pundit Pat Buchanan wrote, “[I]if there was no protest, who sent Carney out to blame the attack on the protest? And if there was no protest, who programmed Rice and put her on five separate Sunday talk shows to attribute the massacre to a protest that never happened?

“If real-time intelligence and U.S. agents at the scene knew it was premeditated, preplanned terrorism by Sept. 12, who told Rice to deny specifically on Sept. 16 that the attack was premeditated or preplanned?”

As WND reported, Sen. Rand Paul, R-Ky., charged that the Obama administration appears to be covering up a gun-running scheme that fell apart when jihadists attacked the U.S. mission in Benghazi.

Andrew McCarthy is a former assistant U.S. attorney who served as the lead prosecutor of the terrorists behind the 1993 bombing of the World Trade Center.

He wrote, “I do think Benghazi could be an impeachable scandal, and I don’t think this is an extreme position.

“We do not yet have the answers about what happened on September 11 – most significantly, when did the commander-in-chief learn of the terrorist attack on the compound and what action did he take to defend Americans who were besieged for over seven hours under circumstances where there were U.S. military assets an hour away? We also do not know how the Mohammed movie cover-up was orchestrated, although the evidence and common sense point to the White House. With four Americans killed and the nation appallingly misled in the stretch-run of a presidential campaign, this is a far more consequential matter than those that led to the Watergate and Lewinsky investigations. A commander-in-chief’s dereliction of duty and his administration’s intentional lying to the American people – to say nothing of its overbearing prosecution of the filmmaker in a transparent effort to shift responsibility to him – would be impeachable offenses if they are proved.”

Nearly five months after the attack, Americans still have more questions than answers.

What the experts say …

“Benghazi is an example of the administration being deceitful, but they do this all the time,” Fein said. “They obviously just proclaimed we defeated al-Qaida and thought, ‘Do we really want to expose the fact that we’ve got the return of al-Qaida?’ Those things happen all of the time. It’s like saying when Bush announced that we had a weapon of mass destruction about the yellowcake uranium in Nigeria, he should be impeached. It’s wrong, but on the scale of things, it’s not worth shouting about.

“In my judgment, what’s so ridiculous is that members of Congress were so busy screaming and yelling about Benghazi, and yet they did nothing when the president illegally commenced war against Libya – when he created the conditions that led to Benghazi. They didn’t care anything about that.”

Fein continued, “It had everything to do with the timing of the election. It had nothing to do with principle. When all of your priorities are solely political maneuvers, that’s the end of the country.

“Politics is about trying to make the country great and hoping everybody wins. It’s not the red team and the blue team and the yellow team, where one team wins and the others lose. That’s what juveniles do and people involved in games. We have an adolescent mentality in Congress and the White House. There’s no statesman who will stand up and say, ‘Enough!'”

Titus added, “I think that’s one of those kinds of situations where, if you’re going to impeach anybody, you impeach the secretary of state. The problem is, she has left office. But I don’t think that prevents the House from impeaching her. Impeachment carries the penalty of not being allowed to serve in the future.”

Gun-control executive actions

Just more than six weeks after the Sandy Hook massacre in which 20 children and six adults were shot and killed by a gunman at an elementary school in Newtown, Conn., Obama turned his attention to the issue of gun control.

On Jan. 16, Obama surrounded himself with children and signed 23 gun-control “executive actions.”

Despite misreporting by many mainstream media outlets on the issue, at this point, Obama’s 23 “executive actions” don’t rise to the level of “executive orders.” They are merely priorities and recommendations to agencies.

Obama also called on Congress to pass a package of legislative proposals. He promised to throw his weight behind the package, demanding new laws to institute universal background checks and impose new bans on high-capacity magazines and so-called “assault weapons.”

Rep. Trey Radel, R-Fla., suggested Obama could face impeachment for his executive actions. Rep. Steve Stockman, R-Texas, declared, “I will seek to thwart this action by any means necessary, including but not limited to eliminating funding for implementation, defunding the White House, and even filing articles of impeachment.”

Titus told WND, “I think it was a lot of bluster and pomp and circumstance and that it really isn’t a serious effort through the exercise of executive power to really make any significant changes.

“He’s giving people like Sen. Dianne Feinstein the energy and support and the kind of emotional reaction that enables Congress to do these things. What Obama’s doing, very cleverly, is keeping the fire stoked up, keeping emotions high, keeping people with empathy and sympathy. He knows that’s what would get these laws passed.

“At this point, is it an impeachable offense? Not in any way, shape or form.”

Fisher said, “I was watching Obama when he was doing his inaugural address. He’s obviously very talented, verbally. But he kept using the word ‘together,’ ‘together.’ So what is the point of all these unilateral actions?”

Worse than Watergate or the Lewinsky affair?

WND asked each of the constitutional experts whether any of the 12 issues listed above might be considered more egregious than the Nixon-era Watergate scandal or Clinton’s perjury following his affair with intern Monica Lewinsky.

“No doubt the predator drone killings, usurpation of the war power, secret interpretations of the PATRIOT Act,” Fein told WND, “those three, in my judgment, are vastly greater in their threat to the constitutional processes and structure than anything under Clinton or Nixon.”

Fisher said, “Watergate was the last time anyone was held accountable. Attorney General John Mitchell went to prison. A lot of people went to prison. We haven’t had any accountability since Watergate. Lewinsky, we all know what happened with that. Really, nothing happened. I think it was a terrible mistake. I think we could have held to some standards, and Congress didn’t.

“We’ve talked about bombing Libya. I think anybody who does that would fully deserve to get thrown out.”

Titus added, “They’re very different. In many respects, the Watergate and Clinton impeachments were really very politically charged. What you have with Obama is a problem in the sense that there isn’t any real concern about the constitutionality or the unconstitutionality of what he did in Libya. This is what’s happened to Congress in the last 50 years. Where are the statesmen?

“Congress doesn’t have clean hands. Without having their own house in order, how do they dare impeach the president for not having his house in order? It’s an unconstitutional mess.

“If the American people really wanted constitutional government – if they were really committed to the kind of constitutional republic that is reflected in the Declaration of Independence and the Constitution of the United States – things would change.”